nomics, University of Colorado, 1935-36; associated with A. J. Laing and with E. A. Bond as briefing clerk in Leadville, Colorado, 1939-40.

Seeley, F. Hamilton: 27 years of age; legal residence, Tuscaloosa, Alabama; University of Alabama, 1932-3; University of Virginia, 1933-5; University of Virginia Law School, 1935-7; University of Alabama Law School, LL. B., 1939; member of Alabama Bar, 1939; associated with Foster, Rice & Foster as law clerk, in Tuscaloosa, Alabama, 1936-8.

Sellery, Harry A., Jr.: 30 years of age; legal residence, Ravinia, Illinois; Williams College, Mass., A. B., 1932; Northwestern University Law School, J. D., 1935; honors work in English at college; member Illinois Bar, 1936; attorney with Puerto Rico Reconstruction Administration, 1935-37, including some investigation of violations of labor provisions of the construction contracts with P. R. R. A.

Spaulding, Augusta de L.: 49 years of age; legal residence, Washington, D. C.; A. B., 1912, with honors in Latin; A. M., 1913; LL. B., 1931 with distinction; Order of the Coif; top student in graduating class member of D. C. Bar, 1930; member U. S. Supreme Court Bar, 1936; author of "Outlines for Bar Review"; author of "Judicial Protection to the Union Member in his Union" (in preparation); teacher in California, 1913-22; clerk of D. C. Juvenile Court, 1934-7; private practice of law, 1937-9; private teacher for D. C. Bar examinations, 1933-8.

Six, William: 28 years of age; Harvard College, A. B., 1932; Harvard Law School, LL. B., 1936 Phi Beta Kappa, Board of Student Advisors; member of Missouri Bar, 1936; author of "The Appropriate Bargaining Unit under the Wagner Act," Washington University Law Quarterly; associated with Thompson, Mitchell, Thompson & Young in law practice at St. Louis, Missouri, 1£36–7; private practice of law in 1937; investigator for Senate Committee on Education & Labor, under S. R. 266, 1937-8.

Strong, William: 31 years of age; legal residence, New York City; Rutgers University, A. B., 1932; New York University, J. D., 1936; member New York Bar, 1936; associated with J. L. Neidle as law clerk in New York City, 1933; associated with American Express Company as clerk and correspondent in New York City, 1933–7; private practice, 1936-8; associated with Oseas & Pepper as managing attorney in New York City, 1937-8.

Sugerman, Sidney: 35 years of age; Columbia University, A. B., 1924; Columbia Law School, LL. B., 1927; member New York Bar; ten years' practice of law in New York, including four years as private assistant to senior member of large law firm and six years' independent practice; served as arbitrator of disputes arising under contract between drygoods employers association, and labor organization, 1936.

Swope, Edwin L.: 30 years of age; legal residence, New Mexico Business College, Albuquerque, New Mexico; George Washington University, 3-year prelegal course; George Washington University Law School, LL. B., 1936; member of D. C Bar, 1937; member of New Mexico Bar, 1939; assistant to Senator Bratton. 1930-23: Assistant to Senate Committee on Irrigation and Reclamation, 1933-4; assistant to Senator Hatch, 1934-7.

Thorrens, Eugene R.: 32 years of age; legal residence, Chicago, Ill.; University of Chicago; Ph. R. 1928; University of Chicago, J. D., 1930, cum laude; student editor Illinois Law Review; member Illinois Bar, 1930; author of several notes in Illinois Law Review; associated with Raymond E. Schnell, with Cohen & Goldstein, with Elias Mayer, and with Moses, Kennedy, Stein & Bachrach, in practice of law, Chicago, Illinois, 1931-7, including extensive practice in workmen's compensation cases before administrative agencies.

Turitz, George: 35 years of age; Harvard University, A. B., 1923; Harvard Law School, LL. B., 1928; member of New York Bar; general practice of law in New York City, 1929-36, including representation of a labor union in dealings with employer and in general union business; attorney with Puerto Rico Reconstruction Administration, 1936-7.

West, Langdon C., Jr.: 30 years of age; legal residence, Bristow Oklahoma ; Antioch College, 1927-30; National University Law School, LL. B., 1935; member of Virginia Bar, 1938 (license to practice, 1934); associated with L. C. West as real estate mortgage loan broker in Bristow, Oklahoma, 1930-2; senior clerk and special agent, Division of Investigation, W. P. A., 1936–7; field examiner in N. L. R. B., 1937-8; member of painter's union while working as Antioch College Cooperative student.

Weston, E. W.: 30 years of age; University of Michigan, A. B.. 1929: Ohio State University College of Law, J. D., 1933; member of New York Bar, 1930– 218054-40-vol. 19— -10

33; part-time stenography and research in Suretyship under Dean Herschel W. Arant; part-time research in procedure and partnership under Professors Silas A. Harris and Robert Mathews; Assistant in Future Interests to Professor Lewis M. Simea, of University of Michigan Law School, summer 1932; legaladministrative clerk in Personal Trust Department, Irving Trust Company, New York City; construction of wills and trust agreements, correlation of miscel laneous legal data concerning estate and trust administration; special investigations and reports of a confidential nature in connection with administrative problems in individual trust accounts, 1933-1937; Research assistant in Security (Liens and Suretyship) to Professor John Hanna, of Columbia Law School, Reporter of American Law Institute Restatement of Security; part-time editorial assistant to Prof. Robert L. Hale, of Columbia, 1938-1939.

Weston, Harold Mayer: 28 years of age; legal residence, New York City; Washington & Lee University, A. B., 1931; Harvard Law School, LL. B., 1934; member Massachusetts Bar, 1934; member New York Bar, 1934; associated with Hon. Lewis S. Posner in general law practice in New York City, 1934-35; attorney with New York State Mortgage Commission, 1935-6, including argument of appeals and preparation of briefs; associated with Probst & Probst & O'Brien in general law practice in New York City, 1936–7; associated with Harry Berman, with Consolidated Radio Artists, Inc., and in private practice, New York City, 1937-9.

Williams, Richard A.: 30 years of age; legal residence, Fort Morgan, Colorado: University of Colorado, 1929-33; George Washington University, 1934-5; National University Law School, L.L. B., 1938, upper 10 per cent of class; member D. C. Bar and D. C. Court of Appeals, 1938; Federal Bureau of Investigation of Department of Justice, 1934-5; National Archives, 1935-8.

Winkler, Ralph: 25 years of age; legal residence, Scranton, Pa.; University of Scranton, A. B., 1935, magna cum laude, ranking 4th in his class; University of Michigan Law School, J. D., 1938; University of Michigan Law Review, 1936-8; member Michigan Bar, 1938; author of approximately 12 case notes in Michigan Law Review, 1937-9; associated with C. J. Wing as law clerk in Scranton, Pa., during summer months of 1936 and 1937, research for Prof. Simes, University of Michigan Law School, and for outside lawyers, 1937-8.

C. MISCELLANEOUS

Arntson, John A.: 26 years of age; legal residence, Calva, Illinois; La Crosse State Teachers College (Wis.); National Law School, L.L. B., 1937; George Washington University 1938 to date; honorable mention, Constitutional Law Medal; member D. C. Bar; member D. C. Circuit Court; clerked in store while going to school; Department of Agriculture, 1933-6; Patent Office, 1936–7; Administrative Staff, N. L. R. B., 1937-8.

Brandzel, Sol: 27 years of age; legal residence, Chicago, Ill.; Crane College, Illinois, 1930-32; Lewis Institute, 1931–3; DePaul University Law School, L L. B., 1938, top fourth of class; member of Illinois Bar, 1938; member of Federal District Court Bar, 1938; associated with Eugene Darch, with I. Brown, Master in Chancery, with L. Lowenthal, and with Folsom, Grossberg, Butter & Brill in practice of law, Chicago, Ill., 1935-9, briefing and research including matters in regard to Board hearings.

Cobey, James A.: 26 years of age; Princeton University, A B., 1934; Yale Law School, LL. B., 1936; Harvard Graduate School of B. A., 1938; member of D. C. Bar.

Davis, Sidney L.: 25 years of age; legal residence, Washington, D. C., Brooklyn College, evening session, 1935; Brooklyn Law School, L.L. B., 1937, cum laude: Brooklyn Law School, LL. M., 1938, cum laude; member of Philonomic Council honorary society; member New York Bar 1938; two years research as legal assistant; assisted Vice-Dean in preparation of text on Law of Sales; editor of Legal Service Relating to Securities and Exchange Laws one year; handled cases under Wages & Hours law.

Delin, Bertha: 51 years of age; legal residence, Rush City, Minnesota; special courses, University of Minnesota and Duluth Minnesota Normal School, 1908-12; Northwestern University, LL. B., 1925; admitted to Illinois Bar, 1925; grade school teacher in Minnesota, 1908-16; Executive Secretary and Director of Publicity, Minnesota Suffrage Association, and member of Lobby Committee for Federal Suffrage Amendment, 1916-20; advertising manager, National School of Digest, at Minneapolis, Minnesota, 1920-22; private practice of law in Chicago, Illinois, 1925-6; attorney for Sanitary District of Chicago in

charge of industrial compensation and personal injury cases with several lawyers and 18 investigators under her direction, 1926-9; private practice in Chicago, 1929-32; Assistant Prosecutor for the City of Chicago in the Women's Court, 1932-3; Conciliator for the Chicago N. R. A. Compliance Board, 1933; organized Law Department of the Illinois Relief Commission for the Trial of Fraud Cases and appeared as special prosecutor for the Commission, 1933-4; General Deputy Collector, Bureau of Internal Revenue, Chicago, Illinois, 1934–7; represented United States at International Conference on Industrial Legislation for Women, Berlin, 1929.

Goldberg, Herman: 29 years of age; legal residence, Baltimore, Md.; University of Maryland; George Washington University; University of Maryland School of Law, LL. B., 1938; member of Maryland Bar, 1939; U. S. Patent Office, clerical capacity, 1929-37; N. L. R. B. in clerical capacity, 1937–9. Humphrey, Helen F.: 30 years of age; legal residence, Brooklyn, N. Y.; University of Michigan, A. B., 1931, magna cum laude, with honors in English; St. Lawrence University, Brooklyn Law School, LL. B., 1938; miscellaneous courses in graduate schools of New York University, Columbia University, and Brooklyn Law School, 1933-9; Phi Beta Kappa; Phi Kappa Phi; "A" average last two years of Law School; member New York Bar, 1938; author of miscellaneous articles on American history in Mississippi Valley History Review; contributor to Michigan Encyclopedia (to be published); substitute librarian, Detroit, Michigan, in summers 1927-30; assistant, William L. Clements, Librariau of American History at Ann Arbor, Michigan, 1931-33; assistant in New York University Library, 1933-9; private practice of law in New York City, 1938-9.

Karasick, David H.: 29 years of age; legal residence, Chicago, Illinois; University of Washington (Seattle) 1930-31; University of Chicago, 1931-33; DePaul University, College of Law, LL. B., 1935; member Illinois Bar, 1935; intermittent general practice of law in Chicago, Ill., 1935-9; law clerk for Judge William H. Holly, Federal District Court in Chicago, 1936-9; legal research in labor law and N. L. R. B. for Dr. John A. Lapp in Chicago, 1937-9. Wainwright, Mildred R.: 31 years of age; University of Illinois, 1925-7; University of Illinois Law School, 1927-9; George Washington University, College of Law, LL. B., 1932; member D. C. Bar; associated with law firm of Semmes & Semmes in Washington, D. C.; on legal staff of Board of Governors of Federal Reserve System, 1933-7.

Mr. J. WARREN MADDEN,

N. L. R. B. EXHIBIT NO. 246

FEDERAL SECURITY AGENCY, Washington, February 27, 1940.

Chairman, National Labor Relations Board, Washington, D. C. DEAR MR. MADDEN: In compliance with the request of your Board, I am enclosing for such use as you may deem appropriate, a copy of a memorandum of March 2, 1937, prepared in this office, entitled “Contract Requirement of Compliance with National Labor Relations Act."

This memorandum is one of the research memoranda prepared in this office. As you know, it was adopted in part in the preparation of a letter submitting the question involved to the Acting Comptroller General which resulted in the Acting Comptroller General's decision of July 15, 1937, disagreeing with the conclusion reached in the memorandum.

Sincerely yours,

FOWLER V. HARPER, General Counsel.

MEMORANDUM OF LAW ON CONTRACT REQUIREMENT OF COMPLIANCE WITH NATIONAL LABOR RELATIONS ACT

I. CONDITIONS IN GOVERNMENT CONTRACTS—IN GENERAL

The question is whether the Social Security Board, in inviting bids and awarding contracts pursuant to competitive bidding, may validly require that the bidder comply or certify that he is complying with the National Labor Relations Act [29 U. S. C. A., Sec. 151, et seq.].

Section 3709 of the Revised Statutes [41 U. S. C. A., Sec. 5]-which, however, does not apply to any purchase by the Social Security Board when the aggregate

amount involved does not exceed $300 [41 U. S. C. A., Sec. 6d]-provides as follows:

"Advertisements for proposals for purchases and contracts for supplies or services for departments of Government. Except as otherwise provided by law all purchases and contracts for supplies or services in any of the departments of the Government and purchases of Indian supplies, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places in the manner in which such articles are usually bought and sold, or such services engaged, between individuals."

This Section has been construed to require that the contract be awarded to the lowest responsible bidder [10 Comp. Gen. 294; Scott v. United States, 44 Ct. Cl. 524; O'Brien v. Carney, 6 Fed. Supp. 761] but the statute is for the protection and benefit of the United States [American Smelting Co. v. United States, 259 U. S. 75, 42 S. Ct. 420, 66 L. Ed. 833] and not of the bidder.

I do not intend in this memorandum to go into the question whether the United States has power to exact, as a condition of entering into a contract, a promise to comply with the National Labor Relations Act. That power. as to a condition of compliance with prevailing wage rates, is ably sustained in a brief by Mr. Gerard D. Reilly, Acting Solicitor, Department of Labor, printed in the record of the hearings of the Walsh-Healey bill.1

In 10 Comp. Gen. 294, it was held: (a) that Congress, having provided in which cases contractors shall be required to give preference to ex-service men, a contract requirement to secure preference in other cases is unauthorized; (b) that unless specifically authorized by statute or required by public exigency, a contract for Government construction work may not be so drawn as to require preference to be given in employment of labor to American citizens and aliens with their first papers; (c) that in the absence of a statute, there is no authority to include in a government contract a requirement of compliance with prevailing rates of wages. The last holding rests on two grounds: (1) that it clashes with the intent of Section 3709, quoted above, in that it removes from competitive bidding an important element of cost and tends to defeat the object of obtaining the services or materials required at a cost no greater than the amount of the bid of the low responsible bidder after full and free competitive bidding, and (2) that such a requirement is not reasonably and clearly necessary to the accomplishment of the thing authorized by the appropriation to be done.

In a decision rendered February 9, 1937 (A-83153), however, the Comptroller General approved a stipulation in specifications to form a part of the standard construction contract similar to Article 21 of P. W. A. Form 51, approved by the Federal Emergency Administration of Public Works and revised October 1, 1935. This article is as follows:

"ART. 21. Compensation insurance.-The contractor shall provide adequate workmen's compensation insurance for all labor employed on the project who may come within the protection of such laws and shall provide, where praeticable, employers' general liability insurance for the benefit of his employees not protected by such compensation laws, and proof of such insurance satisfactory to the contracting officer shall be given." 2

By Executive Order No. 6646 (40 U. S. C. A., Sec. 414, note), promulgated March 14, 1934, the President, without stating on what authority he was acting, required, inter alia, that all invitations to bidders should provide that

3

1 Hearing before a Subcommittee of the Committee on the Judiciary, House of Representatives. 74th Congress, 2nd Session, on H. R. 11554, p. 536. See also testimony beginning at p. 530.

2 At the same time the Comptroller General disapproved a clause providing that "the contractor shall take all precautions necessary for the protection against injury of all persons engaged at the site in the performance of the contract. He shall comply with all applicable provisions of the Manual of Accident Prevention in Construction, issued 1930 by the Associated General Contractors of America." The disapproval was based on the ground that no penalty for nonperformance was provided for in the contract and further that the duty attempted to be imposed upon the contractor "is more or less indefinite, and no doubt would result in higher bids

*

The order states that it is made "by virtue of authority vested in me as President of the United States.' In a prior order (Executive Order No. 6246) promulgated August 10, 1933 (40 U. S. C. A., Sec. 414 note), dealing with code compliance by Government contractors the President purported to act "by virtue of authority vested in me by the (National Industrial Recovery Act)."

no bid would be considered unless accompanied by a certificate of compliance with the applicable N. R. A. code of fair competition or with the President's Reemployment Agreement; that all Government contracts and purchase orders should contain a requirement of such compliance and a provision that the United States should have the right to cancel a contract for failure to comply with such provision and to make open market purchases or have the work otherwise performed at the expense of the contractor; and that no agency of the United States and no Government contractor or supplier should accept, or purchase for performance of any contract or purchase order or enter into a subcontract for articles, materials, or supplies in whole or in part produced or furnished by one who had not executed a certificate of compliance.

The Comptroller General presuming that the Executive Order was based on Section 10 of the National Industrial Recovery Act (13 C. G. 359, 363), recogized its validity in a series of rulings (13 C. G. 127; 13 C. G. 132; 13 C. G. 159; C. G. 171; 13 C. G. 359) but held that the minimum price provisions of the codes were not intended to apply to Government contracts (13 C. G. 100).

In 13 Comp. Gen. 121, Executive Order No. 6646 was not involved but the Federal Emergency Administrator of Public Works, to whom the President had theretofore delegated certain of his authority under Title II of the National Industrial Recovery Act, had on September 7, 1933, issued Bulletin No. 51 relating to contracts for Federal projects under Title II of the National Industrial Recovery Act and provided that no bids should be accepted from any contractor who had not signed and complied with the applicable code of fair competition adopted under Title I, or if there was no code then with the provisions of the President's reemployment. The Comptroller was not called upon to decide the validity of the requirement since the contractor had signed the reemployment agreement and was complying with it at the time of submitting the bid, but the Comptroller took occasion to say:

"It seems unnecesary at this time to determine whether, as urged, the provisions of section 53 of Bulletin 51, Federal Emergency Administration of Public Works so go beyond and supplement the law as to be without force or effect under the rule stated in numerous cases, including United States v. 200 Barrels of Whiskey, 95 U. S. 571; United States v. Eaton, 144 U. S. 677. The evident purpose of the provision is to encourage support for the President's recmployment program and faithful observance of codes of fair competition by those subject thereto. Efforts prompted by so worthy a motive are not to be discouraged." (13 C. G. 126.)

The decisions relating to code compliance may perhaps be distinguished on the ground that they were based on a presumably valid Executive Order, but this cannot be said of the Comptroller General's holding that advertised specifications and contracts for the purchase of agricultural commodities by a governmental agency should comply with existing marketing agreements or licenses approved by the Secretary of Agriculture. There seems to be no Executive Order imposing such a requirement [13 Comp. Gen. 76; 15 Comp. Gen. 201; (Note No. 1); 15 Comp. Gen. 344; 15 Comp. Gen. 400.] *

Its

The language of the Comptroller in this connection is significant: "This paragraph (requiring the contractor to comply with all provisions of any marketing agreement or license in effect on the date of the opening of the bid) has been ink-lined out as well as the provision that Federal taxes heretofore imposed are included in bid price and the requirement for code compliance. The quoted paragraph is an undertaking on the part of a bidder for government business to comply with a marketing agreement and/or license approved and executed by the Secretary of Agriculture under the provisions of the Agricultural Adjustment Act. The Agricultural Adjustment Act is the law of the land. validity or invalidity has not been determined by the court of last resort and until the question is decided by that court, the act must be looked upon as binding upon all citizens. The Act authorizes the Secretary of Agriculture to enter into marketing and/or license agreements with the members of specified industries and when such agreements have been consummated they are binding upon members of such industries irrespective of whether or not such members undertake voluntarily to comply with the law. The requirement in the invitation for bids for compliance with such marketing and/or license agreement is no more than a requirement that the bidder shall comply with laws controlling industries and the individual members thereof. A refusal on the part of the bidder to comply with such agreement is, therefore, a refusal to undertake compliance with prevailing laws. Until the validity of the Agricultural Adjustment Act is finally determined, there is no legal objection to a requirement in the solicitation for bids that those seeking Government business will voluntarily comply with its provisions and the refusal of Kingan & Company to undertake compliance at this time justifies rejection of its bid" (15 Comp. Gen. 202, 203). The Comptroller, however, in analogy to his code decisions, has held that the price provisions of marketing agreements did not apply to the Government [13 Comp. Gen. 1811, and has further held that a bidder could not be required to undertake compliance with any subsequent marketing agreements or with such agreements not then in effect [15 Comp. Gen. 114; 15 Comp. Gen. 335; 15 Comp. Gen. 344; 15 Comp. Gen. 400; A-84283, dated